May 30, 2007

Proposed water permit moves forward: Final approval will await outcome of litigation

By Pamela Lawson
Staff Writer, High Timber Times

It took 15 minutes Tuesday for a water attorney representing the Will-O-Wisp Metropolitan District to present final testimony in seeking approval from Park County commissioners for a 1041 water permit.

It took another eight hours for commissioners to reach a final decision on what has become a highly controversial application to accommodate construction of a 450-home Tanglewood development in Pine Junction.

In the end, the decision by commissioners was to defer approval, or rather continue the application for one single purpose: to allow the applicant to settle pending lawsuits over property rights.

Doc McKay proposed the continuation, and commissioners Leni Walker and John Tighe approved the decision, though they agreed to all other criteria of the proposal.

Commissioners could have easily ruled for approval with conditions, but concerns arose over the message that might send to judges who will be hearing the pending legal cases.

One issue for WOW, discussed during the hearing, was the introduction of new evidence late Friday that the location of the diversion point where the district plans to remove water from Elk Creek and pipe it to storage units may be in error.

Reference to the possible discrepancy turned up in the form of a letter from a water engineer with the state Division of Water Resources.

In the letter, the engineer indicated that information his agency had regarding the location of the historic head gate/ditch may differ by 100 feet from where the district believes that diversion point to be — a location that was pinpointed in documents and is currently at issue in a condemnation suit by the district to access a homeowner’s property to build the pipeline.

Both the district and a local family are already in a dispute over who owns water rights to the ditch/diversion point.

Based on that, according to the letter, water rights owners may petition the court that the ditch was adjudicated in error.

Further, if WOW adjusts the diversion point by 100 feet, it could affect a wetlands area, cause a planned road to be reconfigured, and impact two more property owners who would be caught up in the condemnation efforts.

The district’s attorney, Richard Toussaint, believes the change would have minimal impacts. But if it is found that the change does significantly alter the already-approved criteria, the district could be forced to start over again with its 1041 application.

But that issue is for another day.

On Tuesday, the district’s final proposal reviewed by Park County commissioners has eight conditions, including the need to settle the pending litigation.

In addition, the district was challenged during the hearing to consider a financial contribution toward the restoration of Elk Creek in Park County, and the district and developer agreed to ante up $50,000 for mitigation efforts if the project is approved.

The agreement, however, will serve only a 1-mile section of Elk Creek that runs through Park County. The bulk of the creek is in Jefferson County and spans several miles through or near the properties of several hundred residents before it reaches the North Fork of the South Platte River near Pine Grove.

The contribution does not in any way release WOW from agreed-upon obligations in the proposal that will require it to monitor and mitigate Elk Creek once the development is built out. The donation was more or less suggested by Commissioner Tighe when he had a man who administers stream restoration projects in Park County speak about that at the end of the hearing.

Richard Toussaint, an attorney representing the Will-O-Wisp Water District, shares a light moment with Park County commissioners on Tuesday during lengthy testimony regarding a 1041 permit.

The speaker explained the benefits of stream restoration and general costs. For example, 1 mile of stream can cost $100,000 or more to treat. The restoration projects may include adding pools and riffles to maintain optimum aquatic habitat.

The county pays a portion, and matching grants and other means cover a portion, thus the applicant’s agreement to contribute $50,000 to the cause.

The conclusion of the matter Tuesday seemed to calm those on several different sides of the issue, if temporarily.

Tighe, who grilled the applicant’s attorneys over possible impacts to Elk Creek at Tuesday’s hearing, seemed to soften his discussions about the project toward the end by saying, “I do believe the benefits to the county and citizens outweigh the detriments.”

Jeff Kahn, special legal counsel to the Board of Commissioners, speaks to issues involving a 1041 permit shortly before commissioners continued the case pending the resolution of three lawsuits.  Seated to his left is attorney Barbara Green, who also provided counsel and to his right, chief administrative officer Sandy Berryman.

Those in the audience frustrated over unresolved legal matters and other concerns regarding impacts to Elk Creek were at least relieved that the project had not received a stamp of “approval with conditions.”

And Toussaint seemed relieved too, in part because there had been some resolution on most of the matters regarding his client’s application.

“We’re pleased that the Board of County Commissioners found we complied with all criteria, other than property rights,” Toussaint said.

My Woodside Home Page